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Federal Register / Vol. 86, No. 172 / Thursday, September 9, 2021 / Rules and Regulations requirements in 40 CFR part 124 that are pertinent to the currently-applicable FIP
incorporating 40 CFR 52.21. EPA is not including in its final approval 35 Ill.
Adm. Code 252.301 because IEPA
withdrew this provision from its submittal, and it is not a required element of a PSD SIP.

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F. Personnel, Funding, and Authority Section 110a2Ei of the CAA
requires states to have adequate personnel, funding, and authority under state law to carry out a SIP. EPA finds that IEPA has authority under state law to issue PSD permits. Specifically, sections 9.ldl and 2 of the Illinois Environmental Policy Act Illinois Act, 415 ILCS 5/9.ldl and 2, specify that no person shall violate any provisions of sections 111, 112, 165, or 173 of the CAA, as now or hereafter amended, or the implementing Federal regulations;
or construct, install, modify or operate any equipment, building, facility, source or installation which is subject to regulation under sections 111, 112, 165, or 173 of the CAA, as now or hereafter amended, except in compliance with the requirements of such sections and Federal regulations adopted pursuant thereto. The Illinois Act further specifies that no such action shall be undertaken without a permit granted by IEPA whenever a permit is required pursuant to the Illinois Act or the implementing state regulations, or section 111, 112, 165, or 173 of the CAA
or implementing Federal regulations, or in violation of any conditions imposed by such permit. Consistent with the Illinois Act, 35 Ill. Adm. Code 204.820
and 204.850 require that a source may construct or operate any source or modification subject to PSD permitting only after obtaining an approval to construct or PSD permit. IEPA would have the ability to rescind such PSD
permit under 35 Ill. Adm. Code 204.1340.
As discussed in the proposed rule, and in response to comments below, EPA finds that IEPA has provided the necessary assurances that it has adequate personnel and funding to implement PSD permitting activities in Illinois, including an adequate number of full-time construction permit staff and revenue stream from permit fees to administer a PSD program in Illinois.
G. EPA Oversight Authority In approving state NSR rules into SIPs, EPA has a responsibility to ensure that all states properly implement their SIP-approved preconstruction permitting programs. Accordingly, EPA
will conduct appropriate oversight to ensure that permits issued by IEPA are
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consistent with the requirements of the CAA, Federal regulations, and the SIP.
EPAs authority to oversee NSR
permit program implementation is set forth in sections 113 and 167 of the CAA. For example, section 167
authorizes EPA to issue administrative orders, initiate civil actions, or take whatever other action may be necessary to prevent the construction or modification of a major stationary source that does not conform to the requirements of the PSD program.
Section 113a1 of the CAA provides for a range of enforcement remedies whenever EPA finds that a person is in violation of an applicable implementation plan. Likewise, section 113a5 of the CAA provides for administrative orders and civil actions whenever EPA finds that a state is not acting in compliance with any requirement or prohibition of the CAA
regarding the construction of new sources or modification of existing sources.
Under 40 CFR 51.166a4, IEPA is obligated to review the continued adequacy of its approved SIP on a periodic basis and within 60 days of such time as information becomes available that an applicable increment is being violated.
III. What comments did we receive on the proposed rule?
Our proposed rule provided a 30-day public comment period. See 86 FR at 22372. During the comment period, which closed on May 28, 2021, we received both adverse and supportive comments. We received comments in support of our proposed rule from the Illinois Environmental Regulatory Group. We received adverse consolidated comments from Earthjustice, Environmental Law &
Policy Center, and Sierra Club. We respond to the adverse comments in this section.
Comment: The commenters assert that EPA cannot approve Illinois PSD
program into the SIP because IEPA has not provided necessary assurances that it will have adequate personnel, funding, and authority under State law to carry out the SIP, as required by section 110a2E of CAA. The commenters allege that IEPA has for many years been understaffed and under-resourced to handle its existing volume of regulatory obligations. Citing findings by EPA including by the Office of Inspector General OIG and other studies, the commenters argue that: 1
IEPAs title V program has longstanding funding and permit processing issues, including a title V permit backlog above EPAs recommended level as recently as
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2017, suggesting the same issues will arise with the PSD program; 2 IEPA
staff has declined since 1980 and by nearly 50% in the Bureau of Air during the period 20032018; 3 there is no general fund appropriation for IEPA;
and 4 delays of permit appeals at the Illinois Pollution Control Board IPCB
suggest personnel and funding issues in that body, which would delay resolution of PSD permit appeals. The commenters allege that IEPA has not demonstrated that the staffing and resource shortages already plaguing it have been resolved, nor has it shown that IEPA or the IPCB have the sufficient staff and resources necessary to equip them to implement the PSD program.
The commenters also assert that funding and staffing shortfalls place a disproportionate burden on Environmental Justice EJ communities by delaying the review and enforcement of noncompliance with permits for sources that are disproportionately located in EJ communities. As a result, the commenters assert that authorizing IEPA to administer the PSD program would be inconsistent with IEPAs and EPAs EJ obligations.
EPA Response: EPA acknowledges that IEPA, like many other permitting authorities, has seen staff and funding decline over the years due to reduced legislative budget allocations, facility shutdowns particularly by large emitters such as coal-fired power plants, and other factors. However, we disagree with the commenters assertion that IEPA has not met its burden to provide the necessary assurances that it will have adequate personnel and funding under State law to administer a SIP-approved PSD program in Illinois.4
While CAA section 110a2E requires each state to provide necessary assurances that the state will have adequate personnel, funding, and authority under state law to carry out the SIP, it does not mandate a specific methodology for EPA to use when evaluating the adequacy of resources to implement the SIP. See 76 FR 42549, 42554 July 19, 2011. The scope of this action is limited to determining whether the Illinois SIP meets certain infrastructure requirements of CAA
section 110a2E with respect to funding and personnel for purposes of implementing the approved SIP. As discussed in the proposed rule, IEPA
has issued PSD permits under the delegation agreement with EPA since 1980, and the staff of engineers and air 4 The commenters provided no evidence to contest EPAs finding that IEPA has provided necessary assurances that it will have adequate authority under State law to carry out the SIP.

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